Examining Trump’s History: The New President And Trademark Rights

What does Mr. Trump’s history of trademark litigation foretell? We’ve made an extensive examination of lawsuits filed, administrative challenges in the Trademark Office, and Trump’s history of trademark registration ownership.

Two of the things about Donald Trump which have become legendary are his love of the “Trump” brand, and his love of litigation. What do his trademark lawsuits and registrations foretell about the course of trademark law in this country for the next four years?

Let’s be honest. With healthcare, immigration, job creation, and nuclear codes among the things that the transition team must fix, trademarks are not exactly part of the first 100 days’ agenda. As important a role as they play in today’s connected economy, trademark policy is something candidates rarely (if ever) discuss. We’re told that Mrs. Clinton was once herself an IP lawyer. But presidents have not traditionally been significant brand owners. Ford Motor Company did not come from Gerald. Vacuum cleaners were not made by Herbert. Taylor wines did not come from Zachary’s family. Obamacare is from Barack…but that’s different.

If the candidates in an election between a former IP lawyer and a king of brand names don’t talk about trademarks in a campaign, no one ever will. This seems to be the case even the one time there is a significant public policy concern, namely, whether trademark registration may be refused or cancelled when applied to arguably disparaging trademarks, such as “The Slants” or “Redskins.” We’re unlikely to see a role for trademark law issues more prominent in political discourse than that.

Mr. Trump has been a diligent trademark owner. Federal court records show that Donald J. Trump or some Trump company or organization has been involved in a half dozen federal trademark lawsuits over the past ten years. The most recent suit in 2015 technically was a false advertising matter, not a trademark case. His Las Vegas companies filed a case against two labor unions which had circulated a flyer stating that Mr. Trump did not stay at one of his own resorts during an early campaign stop in Nevada, but rather stayed at a competitor’s property — a fact which he denies. The claim was that this allegedly false statement caused reputational injury to the Trump Hotel Las Vegas and constituted false advertising.

The lawsuit characterized Mr. Trump as “…the archetypical businessman – a deal maker without peer. Mr. Trump is a world famous individual, and his name is synonymous with fame, fortune and luxury.” (The court dismissed the case this August, the Trump organization did not attempt to amend its papers, and agreed to the dismissal.)

Before that, the last case showing up under the trademark records in federal court went back to 2008 and involved a dispute over registration of the domain name for “Trump Plaza Of The Palm Beaches” by an independent broker. Pretty routine stuff. In all, there are about seventeen trademark cases over the past twenty five years. None would give the sense Mr. Trump would favor either more robust infringement remedies in court, nor more liberal protections for alleged infringers.

Looking at litigation within the Trademark Office, which typically attempts to block registration to another party based on a claim of confusion, the Trump organization has been a bit more active. But the records do not reflect any activity which appears to be outside the norm of trademark action for the owner of so many marks. This type of trademark protection activity is not unusual for a portfolio of this size. When a mark often consists of a common term, like “trump,” which also has multiple dictionary meanings, conflicts are pretty certain to arise.

In all, there are probably in excess of one hundred current, existing federal registrations to Donald Trump and/or his companies. Sifting through the ownership records might be like what Mr. Trump warned us about those tax returns: it’s complicated. This figure excludes the several marks owned by Melania, and the large and growing stable of “Ivanka Trump” registrations for her products. It also excludes several political slogans, and the large number of marks he formerly controlled in association with the beauty pageant businesses he sold last year, or from an Indiana casino operation which was undertaken over a decade ago.

Among trademark registrations, there is again no indication that Mr. Trump’s company has any unique protection strategy. Clearly, the number of registrations is robust. One could arguably say that the President-elect is more active in the U.S. Patent and Trademark Office than might be necessary, seeking out registration for more uses than perhaps the average well-funded trademark owner. But upon examining the many trademark registrations, there is no pattern which suggests a special view on what or how to register marks.

On the other hand, unlike almost any other president in history, Donald Trump has first-hand familiarity with the concept of marks and brands. He knows the time, money and effort needed for their care and feeding.

As for trade legislation and trademarks? Certain features of NAFTA address trademark rights. If Mr. Trump goes after NAFTA as he has promised, there could be an impact on trademark laws. But the impact likely would be very minor. NAFTA certainly has not created any NAFTA-wide trademark rights. Trademark owners still must file separate applications to register marks here, in Canada, and Mexico. Even an evisceration of the NAFTA deal would not change much. Certain provisions prohibiting registration of “geographically misdescriptive” terms were inserted into our trademark law specifically as part of our membership in NAFTA. This legal issue comes up occasionally, but is hardly front page news. I participated, together with a panel of Canadian colleagues, in a seminar in Montreal in 1994, where we discussed how NAFTA would impact trademark law. The prediction at that time was…not much. There were hopes and thoughts of more trade among the three partner nations, leading to more trademark registration efforts in each country as a by-product of more and freer trade. That came to pass.

We’ve long been a part of at least two other major treaties on Trademark law: the Paris Convention and the Madrid Protocol. Paris has been around for over a century and there is nothing to suggest in any way that this will change. Madrid has been part of our law since 2003. It permits a sort of streamlined style for filing trademark applications in multiple jurisdictions. Multinational trademark owners were heavily in favor. In practice, there is nothing in this treaty that should catch the incoming administration’s attention.

We will have a President who is hyper-sensitive to the value of brand names. Efforts by the courts, legislature or government agencies to lessen those protections will not find a receptive audience in the White House. The incoming President may even argue that his success is built entirely on the fame of his marks. Will that matter?